November 30, 2008

Obama’s transition team gave the green light to Clinton’s nomination after lawyers worked out a remarkable agreement addressing potential conflicts of interest for former President Bill Clinton, who has extensive financial ties abroad.

Most remarkably, the former president agreed to release the long-secret list of 208,000 donors to his presidential library and foundation. As one of nine concessions, he has promised to put out the list by the end of the year.

The rest of the Clinton Foundation can continue its contracts with foreign governments, increase the size of these contracts, and enter into new contracts with new governments. Obama gets some review but no veto: "To whatever extent there are conflict of interest concerns raised about such potential contributions related to Senator Clinton's service as Secretary, they will be conveyed to Hillary Clinton and the Clinton Foundation for appropriate action."

President Clinton can continue to give (well-compensated) speeches and enter into consultant relationsips, presumably with whomever he likes. Once again, Obama gets limited oversight but no veto: "should there be conflict of interest concerns related to the Senator's anticipated service as Secretary, they will share those concerns with Senator and President Clinton for appropriate action."

No, Obama will just add these names to his list of donors that he is not releasing so that he will be ready for 2012. These people are so transparent in their money-grubbing that it is amazing that anyone votes for either of them at all.

I too am curious about the silence on the emoluments clause. There may be gray areas in that portion of our constitution; this isn't one of them. Hillary Clinton is simply not eligible to hold most positions in Obama's cabinet.

This is Bill Clinton, so we must ask the end of WHICH year and in WHICH calendar system, and WHERE will it be PUT OUT, and under WHAT CONDITIONS will it be put out?There are no simple answers with that man.

So: one of President Obama's first acts in office will be to send a nomination to the Senate that violates the Constitution, done shortly after he swears an oath to support and defend the Constitution of the United States.

Way to set the tone for what will surely follow. The ink won't be dry on her commission before we start looking for potential plaintiffs.

"No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increasedduring such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

Note that this applies DURING THE TIME FOR WHICH THEY WERE ELECTED. (How anyone misreads this is a mystery to me; the suggestion that resignation solves the problem would mean the founding fathers were illiterate fools. The point is precisely to stop Senators and Representatives from giving raises to those in other branches of government and then resigning and taking those jobs. This is one reason Hatch could not have been appointed a Justice of the Supreme Court several years ago.)

I think the nomination of Clinton and the intent to keep Gates on board for a while highlights one thing. Obama doesn't think foreign affairs are important. He is not concerning himself with these areas because he doesn't care about them one way or another. His intent is to put people in there that will be reasonably competent and allow him to pursue his domestic agenda full throttle.

I think this shows that he has learned from the Clintons that if you try to change too much at one time you will never get much done. By leaving that alone he can get his communist ideology more firmly established by nationalizing the medical industry and dooming all of Americans for generations unnumbered.

As for the Emoluments clause, the real question I haven't seen answered yet is how do you enforce it? It's clear the legislative branch won't object to it and the executive branch won't object. This leaves the judicial branch and how would they do it? The Constitution gives power only to the other two branches to seat cabinet members.

To bring it to the court you'd first have to have standing. Who has standing? Any citizen? Nope. Does a court even have the power? Seems like a variation on Marbury v. Madison, but I don't see anyone with the strength of John Marshall.

I suspect even if standing were allowed by someone to sue, the court would still consider it a political issue out of their power.

Skyler - an undifferentiated citizen wouldn't have standing, but once she takes office, I would think that a plaintiff will emerge. The difficulty is finding a plaintiff who not only has standing to challenge Clinton's appointment, but who has standing to request her removal as a remedy. See Friends of the Earth v. Laidlaw, 528 U.S. 167, 185 (2000) ("a plaintiff must demonstrate standing separately for each form of relief sought").

I've seen various suggestions that the courts would try to avoid the issue, and I agree that they would be so inclined. But how? I don't think that this square peg can readily be hammered into the round hole of nonjusticiability, at least to the extent that Nixon is the governing precedent. Certainly the issue is capable of being considered within judicially-managable standards, so what case stands for the proposition that the appointment clause is a textually demonstrable commitment of the issue to the other two branches?

Indeed. I think this whole thing is a sop to the Right, who otherwise would be jonesing for outlets for Clinton obsession that so shaped the Republican campaign. This way, for example, Rush can pretend we're entering the fifth term of a Clinton White House.

You know, the only person I can think of that has standing is the current Secretary of State. If I'm not mistaken, she remains in her office until replaced. That is, she isn't automatically removed at on January 20th.

Thus, she would have standing to sue since she shouldn't be replaced by an unconstitutional replacement.

My theory always was that HRC had dirt she'd drop on BHO at the last minute to save her nomination. Then it was that she'd drop it to get McCain in as a one-term president.

Now that she is resigning the senate and taking a terrible dead-end job I know I was wrong.

BHO has more on her than vice-versa, so she knows she won't be able to challenge him on 2012. So this is her way of ensuring her income stream for when Bill dies on top of a pile of nekkid strippers on Zansibar.

So: one of President Obama's first acts in office will be to send a nomination to the Senate that violates the Constitution, done shortly after he swears an oath to support and defend the Constitution of the United States.

My God Simon, Bush violates the the torture convention and violates Habeas Corpus provisions and ignores Supreme Court decisions and you get your panties all in a wad because of what may be some be some silly technical violation of the Constitution having to do with the pay of civil servants.